Com. v. McDonough

• Decision Date: 12 August 1987
• Citation: 511 N.E.2d 551,400 Mass. 639
• Parties: COMMONWEALTH v. James W. McDONOUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 551

511 N.E.2d 551

400 Mass. 639

COMMONWEALTH v. James W. McDONOUGH.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 6, 1987.

Decided Aug. 12, 1987.

Kim Giampietro, Malden, for defendant.

Judy G. Zeprun, Asst. Dist. Atty. (Phyllis J. Broker, Asst. Dist. Atty., with her), for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH, and O'CONNOR, JJ.

LIACOS, Justice.

In November, 1984, a Suffolk County grand jury indicted the defendant, James W. McDonough, for forcible, unnatural sexual intercourse with a child under the age of sixteen. ¹ The acts were alleged to have occurred between August 22, 1979, and May 14, 1982. After trial in the Superior Court in Suffolk County, the jury returned a verdict of guilty of statutory rape. G.L. c. 265, § 23 (1986 ed.). ² The defendant was sentenced to a term of from seven to twelve years at the Massachusetts Correctional Institution at Cedar Junction. ³ The defendant appealed, and we transferred the case to this court on our own motion.

We state some of the relevant evidence. ⁴ The victim lived with his mother in South Boston until he was six or seven years old. When he was approximately four years old, his mother showed him something that he was "going to be doing." The victim demonstrated to the jury how his mother had put her fingers in his mouth in a sexually explicit manner. He testified that she stated that this conduct would make friends and would make people happy. When he was four or five years old, he met the defendant at his mother's apartment and performed fellatio on him in his mother's presence. The victim testified that he was scared when he did this; he thought that his mother would hit him if he refused. ⁵ The victim could not remember how many times he had performed oral sex on the defendant, but he knew that it was more than once.

In January, 1982, when the victim was approximately six years old, he started to visit his father. In June, 1982, the father obtained temporary custody of the child. Permanent custody was granted to the father in April, 1983. In May, 1983, he told his father that he had performed fellatio on the defendant. ⁶ The victim testified that he did not tell his father right away because he was nervous, afraid, and embarrassed. When his father asked why he had done this, he answered that his mother had taught him and "told [him] it was a good way to make friends."

The victim's father informed the State police. Lt. Thomas L. McLaughlin of the State police spoke with the victim on August 10, 1983. The victim told the lieutenant that his mother initially had introduced him to pornographic material which depicted some of the acts she was talking about, required him to place his penis on her vagina, and told him that fellatio makes other people happy. He also told the lieutenant that he had performed fellatio upon the defendant and John Renzi a social worker for the Department of Social Services. ⁷

Lt. McLaughlin then called the defendant's home on January 5, 1984, to ask the defendant to come to the police station. The defendant went voluntarily to the station three hours later. He spoke with the lieutenant and with Corporal Jack Nasuti. Lt. McLaughlin read the defendant the Miranda warnings. The defendant then signed and dated a Miranda card. During an approximately forty-five minute conversation, the defendant admitted that the victim had performed fellatio upon him three or four times over a period of two or three months.

The defendant testified that he knew the victim and the mother. He denied allowing the victim to perform fellatio on him. When asked whether he remembered telling Lt. McLaughlin that the victim had "sucked [his] penis maybe four or five times," the defendant replied that he "might have said that, but out of fear or something."

On appeal, the defendant argues that the judge erred by (1) excluding the victim's hospital records; (2) refusing to allow two physicians to testify as expert witnesses; (3) excluding evidence of allegedly false accusations of rape; (4) allowing Lt. McLaughlin to testify as to the victim's fresh complaint; (5) "improperly" instructing the jury on fresh complaint evidence; and (6) denying the defendant's motion to suppress his statements at the police station.

1. Hospital records. The defendant argues that the judge erred by excluding certain medical records of the victim. The judge based his ruling on the grounds that the records contained hearsay and privileged matter. The defendant claims that the Commonwealth failed to prove that the records came within the psychotherapist-patient privilege, G.L. c. 233, § 20B (1986 ed.), primarily because a resident physician of Children's Hospital Medical Center, Dr. Barbara Burr, failed to qualify as a "psychotherapist" within the meaning of G.L. c. 233, § 20B.

Conversations between a psychotherapist and a patient, relative to the diagnosis and treatment of the patient's mental and emotional condition set forth in writing in a hospital record otherwise admissible under G.L. c. 233, § 79, may be inadmissible because of the statutory privilege. General Laws c. 233, § 20B, defines "communications" to include not only the conversations but also any record, memoranda, or notes thereof. Usen v. Usen, 359 Mass. 453, 455-456, 269 N.E.2d 442 (1971). A trial judge may also exclude portions of an otherwise competent hospital record if he determines that the record's impact would be more prejudicial than probative. Commonwealth v. Perry, 385 Mass. 639, 642, 433 N.E.2d 446 (1982).

The judge stated that he had examined each page of the records that defense counsel wished to read to the jury. He found that most of the otherwise relevant material in the records was "totem pole," or multiple, hearsay, ⁸ with the exception of portions relating to diagnosis and treatment which were inadmissible under the psychotherapist-patient privilege or the social worker-client privilege. G.L. c. 112, § 135 (1986 ed.). He further found that the apparent purpose of introducing the records was to attack the victim's credibility, by showing that his father had psychiatric problems of his own. The judge noted that, although he had conducted extensive voir dire examinations to allow defense counsel to develop that theme, it had never been developed. After impounding and identifying privileged information, the judge copied and distributed the record to both counsel. The judge indicated that he had permitted counsel for the defendant to examine the hospital records in order to permit the defendant full confrontational rights when his counsel examined the victim's father.

General Laws c. 233, § 20B, defines a "[p]sychotherapist" as "a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry or a person who is licensed as a psychologist by the board of registration of psychologists; provided, however, that such person has a doctoral degree in the field of psychology or is a registered nurse" (emphasis supplied).

The defendant's claim that Dr. Burr does not qualify as a "psychotherapist" is based on his argument that a person licensed to practice medicine who devotes a substantial portion of his or her time to psychiatry is not qualified unless that person also possesses a doctoral degree in psychology or is licensed as a nurse. This interpretation flies in the face of the clear language of the statute, the legislative history, and common sense. The statutory definition of a "psychotherapist" requires either a license to practice medicine and a substantial portion of time devoted to psychiatry or a license as a psychologist and a doctoral degree in psychology. General Laws c. 233, § 20B, was amended in 1977 by inserting the language on which the defendant relies. St.1977, c. 817. The proviso regarding the doctorate was part of the new provision bringing psychologists within the prior definition. It is unreasonable to assume that the Legislature intended the requirement of a doctoral degree in psychology to apply also to the original provision regarding physicians.

In this case, Dr. Burr testified that she was a physician; that she had completed two years of a fellowship in child psychiatry, and that she was a resident in adult psychiatry at the time of trial. The judge ruled that Dr. Burr was a "physician specializing in psychiatry." We note that this court recently held in Robinson v. Commonwealth, 399 Mass. 131, 136, 503 N.E.2d 31 (1987), that the same doctor qualified as a psychotherapist within the meaning of G.L. c. 233, § 20B. There was no error. ⁹

The defendant claims that the hospital records were relevant to the victim's bias, motive, and credibility. He also argues that the judge's "prohibition against use of the medical reports" to address the victim's mental stability and credibility deprived him of his constitutional right to cross-examination. This, the defendant maintains, resulted "in the denial of due process and of a fair trial, effective cross examination and confrontation as guaranteed by the Fifth and Sixth Amendments to the United States Constitution [and] Article 12 of the Massachusetts Declaration of Rights."

The defendant's characterization of the judge's ruling is misleading. The record establishes that the judge permitted counsel for the defendant to examine the hospital record and to use material from the hospital record to impeach the victim's father.

The one passage from the hospital record which the defendant particularly complains of not being allowed to use stated: ¹⁰

"In spite of some strengths, [the victim] is a child with a severe psychiatric disorder. This is manifest by cognitive confusion over the events of his life (e.g. inability to distinguish real episodes of sexual abuse from the abundant and constant suggestions he receives from his father)...." This passage appears in the victim's discharge summary from Children's Hospital, which was...